Lamb v. Co-operators General Insurance Co., 2020 ONSC 4955

The plaintiff was struck by a vehicle while on a scooter. The driver of the vehicle exited and surveyed the damage, but never spoke to the plaintiff. The plaintiff’s husband (who was nearby) also did not speak to the driver. A friend of the plaintiff yelled at the driver but did not engage in any conversation with him. The driver left the scene while the plaintiff was moved into a nearby pub. The plaintiff commenced an action for damages against her insurer, Co-operators, pursuant to the provisions of her policy relating to unidentified motorist coverage. Co-operators brought a motion for summary judgment, arguing that the plaintiff failed to take reasonable steps to ascertain the driver’s identity, such as taking a picture or otherwise recording his license plate number, or asking for his information before moving into the pub. Justice Stribopoulos dismissed the motion, holding that the plaintiff’s failure to identify the driver in the circumstances was not unreasonable. The plaintiff suffered a knee fracture in the accident and it was reasonable for her and her husband to take a few moments to get off the roadway and into the nearby pub. The plaintiff was not responsible for the driver leaving the scene. The driver failed to comply with his legal duty to provide his name and address to the plaintiff.